TMI Blog2021 (12) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... s for any refund of Cenvat Credit and nowhere in this Rule there is a provision to determine the correctness about the availment of Cenvat Credit. Its only Rule 14 ibid which provides for recovery of irregularly availed Cenvat Credit. There are force in the submission of learned Counsel that since availment of credit has not been questioned by the department in terms of Rule 14 ibid, the refund benefit cannot be denied on the ground of non-establishment of nexus between input and the output services. Indisputably, in the refund proceedings under Rule 5 ibid as amended, any such attempt to deny or to vary the credit availed during the period under consideration is not permissible. If the quantum of the Cenvat Credit is to be varied or to be denied on the ground that certain services do not qualify as input services or on the ground of no nexus , then the same could have been done only by taking recourse to Rule 14 ibid - since the provisions of Rule 14 ibid have not been invoked, the refund of Cenvat Credit as claimed by the Appellant under Rule 5 ibid cannot be denied to them and the same is admissible. Appeal allowed - decided in favor of appellant. - ST/88731/2018 , ST/8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Commissioner (Appeals-Thane) GST Central Excise, Mumbai vide impugned order dated 28/05/2018 partly allowed the Appeals by granting refund to the tune of ₹ 4,19,061/- and rejected the refund claim of ₹ 1,65,56,370/- mainly on the ground that the Appellant failed to produce any evidence with regard to nexus of the services in issue with their output services. A table showing total summary of refund claims filed by the Appellant for the period April, 2013 to March, 2016 which are in issue in the instant Appeals is as under: Sr. No. Particulars April 2013 to September 2013 October 2013 to March 2014 April 2014 to September 2014 October 2014 to March 2015 April 2015 to September 2015 October 2015 to March 2016 Total A B C D E F G H I 1 Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as allowed the refunds claimed by the Appellant on identical facts for the periods April to June 2012, July to September 2012, October 2012 to March, 2013 and April, 2016 to September, 2016 respectively. According to Learned Counsel the period involved in the instant appeal is from April, 2013 to March, 2016 i.e. the period which has been left out in the aforesaid appeals (supra). Learned Counsel also relied upon the decision of this Tribunal in the matter of M/s Maersk Global Services Centre (I) Pvt. Ltd. V. Commissioner of CGST, Navi Mumbai; 2019 (10) TMI 959-Cestat Mumbai, in support of his submission that in post-amendment period for deciding refund application the concerned authority has to only ensure that the formula prescribed in the said Rule has been complied with by the claimant and that the authority has no power to go into nexus issue in order to deny the refund to the claimant. Per Contra, Learned Authorised Representative appearing for Revenue submitted that the exclusion clause was inserted vide Notification No. 28/2012-CE(NT) dated 20/06/2012 w.e.f. 01/07/2012 under Rule 2(l) ibid which specifically excludes certain services, viz. club association services and wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reported in 2020 (2) TMI 224-CESTAT Mumbai, set aside the denial of refund by the department to the Appellant on the ground of non-establishment of nexus between the input and output services, after discussing Rule 5 ibid in detail. The relevant extract of the said order is as under: xxxx xxxx xxxx 6. Rule 5 of the Cenvat Credit Rules was substituted by Notification No. 18/2012-C.E.(N.T.), dated 17.03.2012 (w.e.f. 01.04.2012). Under the said substituted rule, it has been provided that the manufacturer or the service provider has to claim the refund as per the formula prescribed therein. Considering such amendment of Rule 5, the Tax Research Unit of Department of Revenue vide circular dated 16/03/2012 has clarified that the new scheme under Rule 5 does not require the kind of correlation that is needed at present between exports and input services used in such exports. Since the amended rule w.e.f. 01.04.2012 does not provide for establishment of nexus between the input and the output services and the benefit of refund is to be extended only on compliance of the formula prescribed therein, I am of the view that denial of refund benefit on the ground of non-establishment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .................................. 4. On perusal of the statutory provisions read with the clarifications furnished by the TRU, it transpires that under the substituted Rule 5 of the rules, there is no requirement of showing the nexus between the input service and the output service provided by the assesee. Since the refund under the said amended rule is governed on the basis of receipt of export turnover to the total turnover, establishing the nexus between the input and output service cannot be insisted upon for consideration of the refund application. 8. In view of above, the impugned order, insofar as it has denied the refund benefit on the ground of non-establishment of nexus between the input and output services, is set aside and the appeal is allowed in favour of the appellant. There is no dispute that the aforesaid decision of this Tribunal in appellants own case covered both pre and post amendment period and also the services which are in issue herein. So far as the decision in the matter of Maersk Global (supra) is concerned, I am afraid that the learned Authorised Representative is not correct in his submission that the said decision pertains to pre-amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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